Dahal v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Dahal v QBE Insurance (Australia) Limited [2021] NSWPIC 308
CLAIMANT:	Bishal Dahal
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	David R Ford
DATE OF DECISION:	16 August 2021
CATCHWORDS:	MOTOR ACCIDENTS - Whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; claimant rode his bicycle and attempted to make a left hand turn at a t-intersection controlled by traffic lights when struck by the insured motor vehicle; insured driver being unable to take evasive action; photographs depicted the breadth of the t-intersection; both parties had an unobstructed vision available to them; both parties failed to keep a proper lookout; insurer in the alternative alleged 75% contributory negligence; COPS event report; factual investigation report; apportionment of culpability; Held - motor accident not caused wholly or mostly by the fault of the claimant; contributory negligence of the claimant considered to be negligent to extent of 50%; claimant entitled to payment of legal costs assessed at the maximum regulated fee.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 of the Motor Accident Injuries Act 2017, the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017, the motor accident was not caused wholly or mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 16 August 2021. 4. Legal Costs: The amount of the Claimant’s cost assessed in accordance with Motor Accidents Injuries Regulation 2017 is $1,826 incl GST.

REASONS FOR DECISION – MISCELLANEOUS CLAIMS ASSESSMENT

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017

BACKGROUND

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3) (d) and (e) of the Motor Accident Injuries Act 2017, about whether for the purposes of section 3.11(1)(a) (cessation of weekly payments to injured persons wholly or mostly at fault after 26 weeks) and section 3.28 (1)(a) cessation of statutory benefits after 26 weeks to injured adult persons wholly or mostly at fault) the motor vehicle accident was caused wholly or mostly by the fault of the injured person.

This is a dispute between the claimant, and the insurer with respect to the payment of statutory benefits, pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act).
The insurer undertook an internal review, and a statement of reasons is dated 17 December 2020.
The claimant seeks to challenge the determination.
The accident occurred on 14 July 2020 at approximately 7:00pm. When the insurer’s driver was driving his motor vehicle along Hill Road at Sydney Olympic Park. The insured driver brought his vehicle to a halt at a red traffic light signal at the intersection of John Ian Wing Parade and Hill Road.
When the traffic light signal turned green, the insured driver drove his vehicle forward and upon reaching the northern side of the intersection, the front passenger side of the insurer’s vehicle was struck by a bicycle being ridden by the claimant.
The claimant was riding his bicycle in an easterly direction along John Ian Wing Parade in the eastbound curb side lane.
As a result of the collision, the claimant suffered injuries and was taken by Ambulance to Concord Hospital where he was admitted. Police attended the scene of the accident.
I conducted the assessment conference by videoconference on 5 August 2021. Both the claimant and the insured driver were questioned. The assessment conference proceeded and concluded at 11:25am.

DOCUMENTS CONSIDERED

I have considered the documents provided in the Application and the Reply and in addition I received further documents annexed to an application to admit late documents lodged on the portal on 4 August 2021.

INSURER’S SUBMISSIONS

The insured driver was questioned at the general assessment conference regarding the circumstances surrounding the subject accident. He did not allege the claimant had been riding his bicycle on the footpath shortly before the collision, which had been referenced in some of the earlier submissions lodged on the portal, and in fact, after direct questioning by me stated he did not see the claimant or become aware of the presence of the claimant on his bicycle until his vehicle collided with the claimant.
The insurer relies upon the reports of Motor Accident Claims Services Pty Limited dated 2 November 2020 and 22 December 2020.
The report of 2 November 2020 contains numerous photographs of the accident scene which were of assistance to me in understanding the dimensions of the intersection and the visual scene which would have been available to both the insured driver and claimant when the insured driver approached this intersection controlled by traffic lights. I note the following paragraphs from page 5 of the investigators report dated 6 November 2020 in relation to the interview with constable Cucinotta:
“Constable cucinotta said she did not check the phone of the claimant at the scene or at any later time in regard to usage at the time of the accident incident, nor did she check the phone of the insured driver.
Police later attended Concord Hospital on 20 July 2020 and spoke with the claimant. He advised he had surgery on his left leg on 15 July 2020. A version was obtained on body worn video. The officer did not have access to this footage but has again translated a brief summary of the information provided by the claimant to her event narrative. The claimant basically states he was looking down at his phone as he approached the intersection. He cannot say what colour the traffic lights were as he entered the intersection.”
At the general assessment conference when questioned by the solicitor for the insurer, the claimant denied that he could not say what colour the traffic lights were as he entered the intersection. He in fact stated the traffic light was green and he also denied looking down at his phone as he approached the intersection.
Constable Cucinotta prepared a narrative in the event report and on page 6 of the investigators report she has paraphrased the content of that report as follows:
“At about 8:00pm on Tuesday 14 July 2020, vehicle 1 was travelling north along Hill Road, Sydney Olympic Park. The driver stated he came to a complete stop at the traffic lights of the intersection of John Ian Wing Parade, and as the lights change green the vehicle has slowly accelerated into the intersection and proceeded forward. So according to the driver, as he was driving forward, the rider has emerged from the near side of the vehicle exiting out of John Ian Wing Parade and the rider has collided with the near side bumper of the vehicle, and due to the impact of it the rider mounted the bonnet and has actually collided with the windscreen. The rider has then fallen off and gets back onto the roadway and that results in him breaking his leg from the fall.”
On page 6 of the investigators report it is stated the police attended Concord Hospital and spoke to the claimant on 20 July 2020. The narrative was again paraphrased by constable Cucinotta as follows:
“I asked him do you remember what happened? He said he has no recollection of what had happened. He doesn’t remember how the accident happened. Police further cautioned the rider, do you remember the traffic light, was it red or green? He said all I can remember was I was travelling along the street to go to Olympic Park. I was riding along and looked down at my phone to put in the address in google maps and then I can’t remember.
She said do you remember there being traffic lights? He said I don’t remember seeing traffic lights. She said do you remember how you got hit? He said I don’t remember anything that happened. It was so fast.
She asked what are your injuries? He said left leg was broken and I have to go to physio for it. She said do you have any injuries on the right side? He said no injuries on the right side. She said did you get concussion? He said I believe not.”
It is then recorded in the investigators report on page 7 the following:
“Police looked at medical reports whilst there which indicate he did not have concussion and no injury but only bruising to the right side and obviously a broken leg on his left side. The claimant reiterated I was riding along, I looked at my google maps and then I have looked up and that’s.”
On page 8 of the investigators report, it is recorded as follows:
“Police advised due to conflicting statements and the lack of any supporting evidence to either party, they allected not to charge any person with an offence arising from the collision.”
There was a front seat passenger in the insured’s vehicle at the time of the accident. However, it appears from the investigations made at the time she had her head looking down at her phone leading up to the collision and could make no comment on the status of traffic signals or actions of the claimant as the insured driver drove the vehicle across the intersection.
I refer to the statement of the insured driver dated 17 September 2020 and in particular paragraph 11:
“Paragraph 11 - The traffic light facing me then changed from a red circle to a green circle. I then started moving off a moment or two later and accelerated normally. I drove straight ahead through the intersection.
Just as I was on the far northern side of the intersection, with the front half of my car over the pedestrian crossing which spans Hill Road, a cyclist drove into the front passenger’s side of my car. I did not see the cyclist at any time prior to the impact. I was going at about 20 or 30 km per hour at the time and applied my brakes straight away. The cyclist hit the front passenger’s side of my vehicle as well as making it just in front of my car and hitting the bumper near the number plate. The rider hit the front passenger section of my windscreen and then fell backwards towards the curb and landed on the road.”
I refer to the report of the investigator dated 22 December 2020, in which is recorded an interview with the insured driver at the scene of the accident recorded via body worn video. This statement is consistent with the subsequent statement from the insured driver dated 17 September 2020.
On page 4 of the report is a further interview with the claimant which was recorded on body worn video which was viewed by the investigator and only the audio was recorded.
On page 5 I note following:
“Q – No.. that’s ok. Do you remember pulling out onto Hill Road? So, when you turn from the street onto Hill Road do you remember pulling out? Do you remember going onto Hill Road?
A – Once again, I don’t know anything, I just lose my mind and.”
Furthermore, on page 5 the following is recorded:
“Q – Ok, do you remember the vehicle coming up Hill Road? Do you remember that vehicle before it hit you? Did you see that vehicle?
A – No, I didn’t.”
It is further recorded on page 7 of the report, constable Cuciontta advised there was very limited ambient light in the area. She referred to a few photographs taken at the scene as evidence to the lack of lighting around the incident site.

CLAIMANT’S SUBMISSIONS

In the liability notice from the insurer dated 5 November 2020, the insurer alleged in relation to mostly at fault, the claimant was liable for contributory negligence in the amount of 75% in the letter from the claimant’s former solicitors’ bond legal dated 1 December 2020, it is submitted on page 2 the following:
“The claimant submits in applying the principles In Section 5 B of the Civil Liability Act 2002, it is necessary in assessing the precautions a reasonable driver would take to consider the likely seriousness of the harm which might eventuate from a collision with vulnerable road user and the burden of taking precautions to avoid the risk of harm, in this case by giving a proper lookout for other road users to avoid the collision.”
It is suffice to say after hearing from both the claimant and the insured driver at the assessment conference the main issue for me to determine in regard to the question at fault was the question of whether or not either party was keeping a proper lookout at the time.
I refer to the application for personal injury benefits completed by the claimant dated 5 August 2020. In section 3 he was asked to describe the motor accident he was involved in. He has recorded the following:
“I was riding my bicycle and I remember a car hit me very hard from the back causing me to fly onto the windscreen of the car.”
A more detailed description of these circumstances surrounding the subject accident are contained in the claimant’s submissions dated 15 June 2021. It is submitted, and I accept the claimant was riding on the road and not on the footpath immediately prior to the collision. It is further submitted he was not paying attention at the time of the accident it is further alleged he had an uninterrupted view of the road ahead and on page 6 of the submissions is a photograph which clearly depicts the breath of the t-intersection. This photograph was of much assistance to me in comprehending the accident scene and the layout of the t-intersection, it also helped me understand the breadth of vision available to both the claimant and the insured driver as they proceeded through the t-intersection. It also provides me with an understanding of the unobstructed vision each party would have had available to him.
I refer to the statement of the claimant dated 1 December 2020. In paragraph 8 he states as follows:
“The statement of the driver that the insurer relying on its completely baseless. On paragraph 11 the driver stated he did not see me prior to the impact. I was already on the far-left lane of the Hills Road. He hit me from behind, he must have been distracted by his phone, or the insured driver must have been distracted by the front passenger who was seated at the front. The same person who indicated to the police that she was looking down and busy with her phone.”
At the general assessment conference the claimant said he had a reflector light on the front of his bike, also on the rear of the bicycle and reflector lights on both wheels. Furthermore, his uber bag was black which also flashes a light at night-time. The front light “blinks”.
Furthermore, in his statement at page 10, the insured driver apologised to him and stated he didn’t see him prior to the collision.
The claimant denied the police interviewed him at Concord Hospital on 20 July 2020. He was discharged from Concord Hospital on that date and at the general assessment conference stated the police spoke to him at his home on 20 August 2020. I also note the following from his statement:
“The police officer asked me do you remember what happened? I told her I was doing Uber Eats, I was returning home after I delivered the food. I had the google map on to go back home and a car hit me from behind. I never said I was looking down while crossing. I simply stated I had google maps on my phone for me to be able to return home.”
“She asked me do you remember traffic lights was it red or green. I said I don’t know but I already crossed the intersection when arrow light turned green and was already on Hills Road going straight on that road.”
He further states the following:
“I clearly remember I crossed the traffic light while the arrow light turned green and slowly riding my bicycle and was along Hills Road.
I was not using my mobile phone or looking down at my phone, my phone was placed in the folder, and I was already in the Hills Road on my way home.”

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
· The MAI Act
· Motor Accident Injuries Regulation 2017
· Motor Accident Guidelines 2020
· Civil Liability Act 2002 (NSW)

REASONS

Was the claimant wholly at fault in causing his accident?

At the assessment conference the claimant stated he was riding through the
t-intersection pursuant to a green traffic light. He further stated prior to making his left-hand turn into Hill Road, he looked to his right and there were no cars coming from his right.
In relation to the speed, he was travelling at on his bicycle, he said he was travelling a bit faster than walking pace. He also stated he had already turned into Hill Road, but only had travelled a distance of between 10-15 metres when he was struck by the vehicle driven by the insured driver.
The insured driver stated there were no cars in front of him when he was stationary at the traffic lights. He said he looked to his left “very briefly” but did not remember seeing the claimant on his bicycle. When further questioned he said he did not see the bicycle rider prior to the collision. He also stated there was no damage to his front number plate prior to this accident.
I do not accept the statement made by the claimant at the assessment conference that he looked to his right and there were no cars coming from the right. I accept the contemporaneous statements made by him when interviewed by the police are a true recollection of the claimant of the circumstances leading up to his accident. He did not look to his right prior to attempting to make a left-hand turn into Hill Road, because if he did he most certainly would of noticed the oncoming vehicle being driven by the insured driver. Furthermore, I do not accept he commenced to make a left-hand turn into Hill Road pursuant to a green traffic light.
However, I also find the insured driver did not look to his left, even very briefly, because if he had done so I find that he would have immediately noticed the claimant riding his bicycle towards the intersection. I also accept the insured driver commenced to accelerate from his stationary position at the traffic lights at a relatively slow speed of 20 or 30 kmph and it is for this reason that travelling at that speed was the reason why he had ample time and opportunity to see the claimant approaching on his bicycle from the left.
I find the t-intersection to be wide in dimension and as stated in paragraph 26 there was a breadth of vision available to both the claimant and the insured driver as they proceeded through the t-intersection and such vision was unobstructed.
In such circumstances, the insured driver when proceeding through the t-intersection should still be keeping a proper lookout which includes not only looking straight ahead but also having regard to the presence of any vehicle or cyclists either moving or stationary in Hill Road. In such circumstances, the insured driver would have been able to bring his vehicle to a halt very quickly having regard to his slow speed or at least sounded his horn to alert the claimant to his presence on the roadway.
I therefore find the insured driver negligent in the driving of his vehicle as he had not kept a proper lookout when proceeding through the t-intersection.
I therefore find the claimant was not wholly at fault in causing the accident.

Was the motor accident caused mostly by the fault of the Claimant?

The honest approving contributory negligence rests upon the insurer. The driver of motor vehicle as to take reasonable care for the safety of other road users. In Manley v Alexander (2005) HCA79 (2005) 80ALJR413 at (11) (Manley), the majority of the High Court emphasised the duty of a driver to give “reasonable attention to all that is happening on and near the roadway that may present a source of danger” also see, Jarzebski and Anor v Jiminez 2006 (NSW) CA104 at 23.
A claimant who asserts a motorist is negligent in failing to keep a proper lookout must establish the motorist had the opportunity to see the claimant and failed to do so. This is consistent with the principle in Manley, that is the duty of a motorist to be observant of all possible sources of danger on the road.

Section 5 R (1) of the Civil Liability Act provides principles that are applicable in determining whether a person has been negligent can also apply in determining whether the person who has suffered harm has been contributory negligent in failing to take precaution against the risk of that harm. The standard of care required of the person who suffered harm is that of a reasonable person in the position of that person and the matter is to be determined on the basis of what that person knew or ought to have known at the time, see ss 5R (2) (a) and (b).
Section 5 (B) of the Civil Liability Act provides in determining a whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things):
(a)    the probability that the harm would occur if care would not take;
(b)    the likely seriousness of the harm;
(c)    the burden of taking precautions to avoid the risk of harm;
(d)    the social utility of the activity that creates the risk of harm;
(e)    the determination of whether a claimant has been contributory negligent is to be decided objectively on the facts and circumstances of the case, see Serrao (by his tutor) Serrao v Cornelius (2) 2016 NSW CA231 (at 61); T and X Company Pty Limited v Chivas (2014) NSW CA 235 (at 51);
(f)    I find the insured driver was not keeping a proper lookout whilst proceeding through the t-intersection and had he done so, he would have seen the claimant approaching on his bicycle and could have applied the brakes of his vehicle or alternatively, allow the claimant to pass safely in front of him;
(g)    I further find the claimant was not keeping a proper lookout in the circumstances and should have seen the insured driver approaching in his vehicle from his right and he should have stopped his bicycle and allowed the insured driver to proceed through the intersection;
(h)    I note with regard to contributory negligence the insurer has submitted 75%. However, having regard to the fact, in my view, the claimant was not keeping a proper lookout, I find he is guilty of contributory negligence as such, but I do not find his contributory negligence was greater than 61%, and
(i)    I note in the submissions, the parties have not requested I make an assessment of contributory negligence and I therefore refrain from determining the precise degree of contributory negligence of the claimant; however, I find it is more likely the claimant was negligent to the extent of 50%.

FINDINGS

I therefore find the accident of the 14 July 2020 was not caused wholly by the fault of the claimant.
I also find the accident of the 14 July 2020 was not caused mostly by the fault of the claimant.

COSTS AND DISBURSEMENTS

The claimant has been successful in his application, and I therefore award the claimant his costs, which I assess at the maximum regulated fee.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:

For the purposes of section 3.11 and 3.28 the motor accident was caused by the fault of another person.
For the purposes of section 3.11 and 3.28 the motor accident was not caused mostly by the fault of the injured person.
Effective Date: This determination takes effect on 16 August 2021.
Legal Costs: $1,826 incl GST.

David R Ford
General Sessional Member

Dispute Resolution Services

[2021] NSWPIC 308

16 August 2021